iAs we head into 2024, protecting the environment remains a key concern for the U.S. government and other governments around the world. This means that companies in all industries need to ensure that they are taking adequate steps to meet their environmental compliance obligations—including their obligations under the Clean Water Act.
As the U.S. Environmental Protection Agency (EPA) explains, “[t]he Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the navigable waters of the United States and regulating water quality standards for surface waters.” Practically, however, the Clean Water Act’s implications are much broader, and compliance concerns can arise well before the point of discharge.
With this in mind, executives need to ensure that they have a clear understanding of the full scope of their companies’ obligations and that they are taking adequate proactive measures to avoid unwanted scrutiny from the EPA in 2024.
Of course, not only does non-compliance with the Clean Water Act present environmental risks, but it presents legal risks as well. The EPA routinely conducts compliance inspections under the CWA, and these inspections can lead to civil or criminal enforcement action. Civil enforcement actions can result in monetary fines of over $30,000 per day until the subject violations have been remedied, while criminal enforcement litigation under the Clean Water Act can lead to both fines and imprisonment for the executives involved.
10 Key Insights for Managing Clean Water Act Compliance in 2024 (and Beyond)
So, what do executives need to know about Clean Water Act compliance in 2024? Here are 10 key insights for implementing an effective long-term Clean Water Act compliance strategy:
- The Clean Water Act is Broad in Both Scope and Application
While the fundamental purpose of the Clean Water Act is to prevent the discharge of pollutants from point sources into U.S. waterways, the statute is extremely broad in both its scope and application. As noted above, companies’ and industrial facilities' compliance obligations begin well before the point of discharge, and the Clean Water Act applies to companies in a wide range of industries (as well as municipal wastewater treatment plants and publicly owned treatment works facilities).
From pollutant generation to pretreatment, and from discharge to remediation, entities ranging from oil and gas companies to construction companies need to take a proactive approach to addressing Clean Water Act and Oil Pollution Act compliance in all areas of their operations. Failure to do so can threaten to disrupt their operations while they come into compliance—in addition to triggering fines and other penalties.
- There Are Several Potential Aspects of Clean Water Act Compliance
Due to its breadth, there are several aspects to Clean Water Act compliance. However, companies are not necessarily subject to all of the statute’s requirements and prohibitions. To implement effective (and cost-effective) Clean Water Act compliance programs, company executives must first ensure that they have a clear understanding of how the statute impacts their operations. While companies can always choose to go above and beyond when it comes to environmental protections, as a baseline, they must ensure that they have an NPDES permit and are meeting their statutory obligations.
This raises another important point as well: Companies that must comply with provisions of the Clean Water Act must often comply with other federal environmental statutes and regulations as well. As a result, company executives should not address Clean Water Act compliance in a vacuum, but instead as one aspect of a broader commitment to federal environmental compliance.
- No Two Companies’ Compliance Needs Are the Same
With the Clean Water Act’s breadth of scope and applicability, no two companies’ compliance needs are the same. To manage compliance effectively, companies must focus on their specific obligations, and they must develop and implement compliance programs that are designed to facilitate compliance within their relevant areas of operation.
Not only must companies’ compliance programs be comprehensive, but they must also be executable. Without execution, a Clean Water Act compliance program won’t serve its intended purpose—and, in the eyes of the EPA, this can reflect intentional disregard of a company’s compliance duties when it comes to environmental regulations.
- Effectively Managing Compliance Starts with Understanding Your Company’s Specific Obligations
In light of the points we’ve discussed so far, it should be clear that effectively managing compliance starts with understanding your company’s specific obligations. This is true not only concerning the Clean Water Act but also about the EPA’s enabling regulations and other pertinent environmental laws and regulations.
To use their resources efficiently, companies must take a comprehensive approach to compliance without adopting unnecessary policies and procedures. An informed and strategic approach is key, and executives must work closely with their counsel to ensure that they have a clear understanding of what is (and isn’t) required.
- Understanding the EPA’s Enforcement Priorities is Necessary, But Not Sufficient
As we head into 2024, the EPA has signaled that it has certain specific priorities when it comes to Clean Water Act compliance. These priorities include:
- Wastewater overflows
- Stormwater runoff
- Pretreatment of discharge pollutants, including stormwater discharges
- Discharges from Concentrated Animal Feeding Operation (CAFOs)
- Biosolids
- Wetlands protections
- Oil spills
Addressing the EPA’s enforcement priorities is important for effective corporate risk management. However, it is not sufficient on its own. Companies must proactively address all pertinent areas of Clean Water Act compliance.
While the EPA is primarily responsible for enforcing the Clean Water Act, other federal, state, and tribal authorities enforce the statute as well (including the Bureau of Ocean Energy Management (BOEM), among many others). With the potential of facing scrutiny in all areas of their operations and from multiple authorities, companies cannot focus on specific relevant aspects of Clean Water Act compliance to the exclusion of others.
- “Pollutants” Can Take Many Different Forms
The Clean Water Act generally prohibits the discharge of pollutants into U.S. waterways (though there are numerous conditions, caveats, and exceptions). The statute’s definition of “pollutants” is extremely broad—and this is one of the primary reasons why such a broad range of companies must proactively address Clean Water Act compliance, especially following the effluent limits and spill prevention control. Under the statute, pollutants that are potentially subject to regulation include:
- Agricultural waste
- Industrial waste
- Municipal waste
- Chemical waste
- Biological materials
- Radioactive materials
- Sewage sludge (even from municipal sewer systems)
- Solid waste
- Rock, sand, dirt, and dredging material
- Discarded equipment
These are just some of the most common examples. To effectively manage Clean Water Act compliance in 2024 (and beyond), executives must ensure that they know which pollutants (if any) their companies are producing and how these pollutants are regulated under the statute.
- There Are Several Key Aspects of an Effective Clean Water Act Compliance Program
Once you have a clear understanding of how the Clean Water Act applies to your company’s operations, then you can begin the process of developing and implementing an effective Clean Water Act compliance program. While Clean Water Act compliance programs must be custom-tailored to companies’ specific environmental risks and operations, there are some overarching considerations involved.
For example, companies should develop policies and procedures under their stormwater pollution prevention plans that facilitate ongoing compliance. Companies should also appoint a chief compliance officer (or equivalent) who holds primary internal responsibility for managing their compliance efforts. Effective implementation is critical as well—as identifying and then failing to address a company’s compliance obligations will almost certainly raise red flags at the EPA (and other agencies).
- Internal Monitoring and Enforcement Are Paramount
Beyond the implementation phase, companies must monitor and enforce Clean Water Act compliance internally on an ongoing basis. Companies should document their ongoing compliance efforts as well. For example, in the event of an EPA inspection of the pollutant discharge elimination system (or inquiry from another agency), being prepared to demonstrate these ongoing efforts will be essential for avoiding unnecessary consequences.
- Companies (or Their Counsel) Must Also Continually Monitor for Updates
Along with internal monitoring and enforcement, companies (or their counsel) must also continually monitor for updates from Congress and the EPA. We expect to see significant new environmental litigation in the years ahead, and the EPA routinely adopts new regulations focused on protecting the environment in light of changing agricultural, commercial, and industrial practices.
- An Investment in Clean Water Act Compliance is an Investment in the Future
Finally, and in many respects most importantly, an investment in Clean Water Act compliance is an investment in the future. Environmental concerns aren’t going away any time soon, and maintaining environmental compliance is going to take on heightened importance in the years to come.
By prioritizing Clean Water Act compliance (and other pertinent areas of compliance), executives can protect their companies and shareholders while also doing their part to protect our environment. What companies do in 2024 will matter long-term, and investing in compliance now will help to mitigate their costs in 2025 and beyond.
